Senate Republicans may seek a formal legal opinion on whether the Michigan Civil Rights Commission overstepped its authority by interpreting an existing anti-discrimination law to protect gay and transgender residents from discrimination.
Monday’s panel vote was celebrated by gay rights advocates who had long urged the Legislature to expand protections. But it has irked legislative Republicans who control the Michgan Senate and House and who are likely to ask Attorney General Bill Schuette to weigh in.
“I think the Civil Rights Commission has gone outside their boundaries again,” state Sen. Mike Shirkey said Tuesday. The Clarklake Republican told reporters the commission went off “their rails in terms of inferring that they’re setting up law and statute.”
In a 5-0 vote with one member abstaining and two absent, the commission approved an interpretive statement holding that existing protections from sex discrimination should also protect residents from bias on the basis of sexual orientation or gender identity.
The panel had tabled debate last fall after Assistant State Attorney Ron Robinson told members they did not have the power to decide the scale and scope of sex discrimination prohibited under the 1976 law.
Shirkey called the reversal “curious” and said Senate Majority Leader Arlan Meekhof, R-West Olive, is “taking the lead” on drafting a request for an official legal opinion from Schuette.
But spokeswoman Vicki Levengood said commissioners heard from other legal experts who said they had the constitutional right to proceed.
“It was their read of the rules regarding their mission that they did have authority,” Levengood said. “They exercised it.”
A group of 27 attorneys and law professors wrote commissioners in October and disagreed with assertions from Robinson, who also told commissioners they would forfeit governmental immunity if they issued an interpretive statement against his advice.
“It is a bedrock principle of Michigan’s Administrative Procedures Act — and of administrative law generally — that agencies maintain the authority, in the first instance, to interpret the statutes they administer,” they said.
“Michigan’s Legislature has expressly granted agencies the authority to interpret the statutes they are charged with enforcing.”
Among the attorneys signing the 2017 letter were several prominent Democrats, including current Secretary of State candidate Jocelyn Benson, former dean of the Wayne State School of Law, and 2014 attorney general candidate Mark Totten.
Sam Bagenstos, a University of Michigan professor recently endorsed by Democrats as a likely nominee for the state Supreme Court, came to similar conclusions in a separate October letter to commissioners.
An “increasingly robust body of judicial and administrative precedent under various federal laws has recognized that discrimination based on sexual orientation or gender identity is sex discrimination,” Bagenstos wrote.
Democratic lawmakers celebrated the Civil Rights Commission's decision. It will allow “people who experience discrimination at work, in housing, or while using public accommodations based on who they love or who they are, to seek a legal remedy,” said Rep. Jeremy Moss of Southfield.
Specifically, the interpretive statement allows the Michigan Department of Civil Rights to investigate complaints from gay or transgender residents, a process that started for the first time on Tuesday.
The department has already been contacted by people looking to file a discrimination complaint on the basis of sexual orientation or gender identity, Levengood said.
